That the ACLU and law enforcement have a prickly relationship is not news to anyone who belong to or support either institution. “Prickly” might even be too subtle, as the perceptions of each by the other are often clouded with distrust and even antipathy. Ramesh Nyberg’s words resonate because they reflect the sentiments formed by example after example of criticisms and legal challenges initiated or supported by the American Civil Liberties Union in response to law enforcement actions and practice. The ACLU has often been a vocal critic of police uses of force, search and seizure practices, and other operational policies they believe infringe on individual rights.

Nyberg, a retired LEO (27 years in south Florida, with 22 as a homicide investigator) and current criminal justice teacher and writer goes on:

I find it wildly ironic that the ACLU, which protects civil liberties, is influencing a mayor to the point that the very citizens of Miami Beach have lost their right to life, liberty, and the pursuit of happiness.

Mayer Bower, tell the ACLU that they can go hang out with their friends Raymond Herisse and the rest of the scumbags who invade your city every year, but do it on the other side of the causeway…

Strong words and on the surface - taken in the macro view of the long-strained ACLU/police relationship – maybe even appropriate. But, in the context of Nyberg’s article and the actual circumstances that inspired them, they happen to be way off base. Worse, depending on who lays hold of his article and how they choose to use it, they are incendiary!

I read his words and was angry! Not at the ACLU but at Nyberg himself, a writer I have read often and come to respect for his experience and direct approach. In this case, however, that approach misses the point and, in my opinion, risks diminishing law enforcement in the eyes of the public should they read too much into his words. If you’re going to “tell it like it is” at least get the facts straight, and think about how your words may be perceived.

The background

Urban Beach Weekend (UBW) has been a longstanding event in Miami Beach, FL with its moniker apparently coined in 2002. What happens is, every Memorial Day weekend up to 300,000 people, predominantly African-American, descend on the city of Miami Beach, FL for a largely hip-hop inspired, “urban” interpretation of the holiday. As can be expected, when a large group of people, mostly young, gather to party there will be certain problems may follow, specifically heavy alcohol (and other drug) consumption, fights, public intoxication, vandalism, and assorted disorderly behavior. Arrests over the weekend skyrocket, numbering over 400 for 2011.

This year was marred by two specific events, in addition to the usual and customary shenanigans. Both involved the use of deadly force by police (gunfire) and both have made the UBW a target of condemnation by locals. The first involved Raymond Herisse, an ersatz “tourist” in the area who, unbeknownst to local law enforcement at the time, had a secret he wished to keep: He was a suspect in a November 2010 armed robbery and aggravated battery (he’s accused of shooting the victim) in Boynton Beach, FL and was a felon in possession of a firearm while visiting Miami Beach. Of course, he came into contact with police, decided cooperation with their lawful orders to stop weren’t in his best interest, and fled. At some point, the car he was driving was stopped by officers and, rather than giving in to their attempts to stop his flight, Herisse used his car to try and run over several of them.

Herisse’s aggressive lack of cooperation led to his date with Darwin, as he ultimately succumbed to acute lead poisoning at the hands of local police.

The second incident involved Carlos Lakeith King, a Charleston, SC fire captain who, while allegedly driving drunk and attempting to run a police checkpoint, narrowly avoided being shot by an officer he nearly ran over. After being missed by the officer’s gunfire, he crashed his car and was arrested for DUI, among other charges.

These incidents, on top of the related property damage, vandalisms, fights, sexual assaults, and other offenses that led to the 400+ arrests over just 72 hours have raised an outcry in Miami Beach, with residents calling for an end to the UBW once and for all. And it’s this outcry that led to the comments by Mayor Matti Bowers, and ultimately the column by Nyberg, that apparently indict – wrongly, when you really look at it with a critical eye - the ACLU as some form of enabler of criminality.

To be fair, the ACLU has weighed in on the Herisse shooting, calling into question not that he was shot, but rather two specific and alleged acts by police: First was the indication that over 100 rounds were fired by police during the shooting and some may have struck other persons in addition to Herisse. Second were the reports by certain individuals that police officers, in the immediate aftermath of the shooting, aggressively approached, and confiscated the cell phones of (and in one case allegedly destroying the cell phone of), persons who had videotaped the shooting.

The reaction

Like it or not, and rightly or wrongly on the part of the police, that many rounds fired and those actions in the aftermath are going to attract inquiry by civil rights watchdogs. And that’s not necessarily a bad thing. If the rounds fired and subsequent actions are justified, then bring on the scrutiny! We can survive it. If not, let remediation take place, corrective action can be undertaken, and mistakes won’t be repeated.

Nyberg references Miami Beach Mayor Matti Bower’s words to conclude:

Enforcement, she said, is heavily scrutinized by the ACLU… and basically hog-ties her department’s ability to search coolers, pat down people, and do things police do to thwart threats to the common public.

So, without that scrutiny the MBPD could or would just do anything they want, the 4th Amendment be damned, and if you don’t like it you have the ACLU to blame? Thanks, Mayor! That’s the impression we hoped you’d go with!

If you check the source he apparently draws his information from (without directly citing it) and objectively critique it, here is the quote you find from Bower, explaining why the city cannot specifically crack down on the UBW:

"There is no organizer, no event. It's just there," she said, emphasizing that the city does not control or issue any permits for any of the long weekend's events. She also claimed heavy monitoring from the ACLU handicaps the city's ability to increase enforcement.

It's a different situation than the city's increased spring break enforcement, she said, because "they're not there saying 'you can't search that cooler'" at spring break.

Is the American Civil Liberties Union that influential over government decisions? "I guess so," she said.

- The Miami New Times news blog

Now, read between the lines… the UBW is not city sponsored or permitted – it just happens and has happened over and over for the better part of a decade - and therefore is not under any special 4th Amendment exemptions that would permit law enforcement to simply “search coolers, pat down people, and do things the police do to thwart threats to the common public” absent the relevant lawful justifications normally required. People just show up and do what they do. Hotels rent rooms to them and businesses cater to them. Local law enforcement apparently prepares for and, as the situation requires, arrests them when they step out of line. And at least twice this year, police had to use deadly force. So be it, if it’s justified.

But then read further between the lines… Mayor Bower is really just scapegoating the ACLU for her inability to legally limit the event, or the unwillingness on her and the city council’s part to search for legally justified solutions to the problem, in the face of public outrage. Either way, she throws that organization under the bus for political cover, over something there is no evidence they weighed in on in the first place! A distinction Nyberg misses completely.

Should regular 4th Amendment restriction on police be suspended for the UBW and its attendees? Should there be a skin pigmentation-based litmus test for how police respond to tourists in a city whose economy relies heavily on the tourist dollar? Should a city be allowed to creatively and preemptively reinterpret the Constitution for one weekend a year? There is a solution and it is enforcement-based… and able to stand up under the strictest legal scrutiny. Mayor Bower just needs to trust her cops and their supervisors to implement it.

The peril of imprudent words

Now is the time, Matti, to flip the ACLU a bird… (Now is the time, Matti, to flip CIVIL LIBERTIES a bird…)

Is that what Ramesh Nyberg meant? It’s time to give civil rights the finger? I don’t think so, but consider how those who distrust or dislike us might grasp onto his words as an example of “jack-booted thugs” out to strip society of civil liberties. Think of how quickly information spreads in this current age, and how words are twisted.

Mayer Bower, tell the ACLU that they can go hang out with their friends Raymond Herisse and the rest of the scumbags who invade your city every year…

So now the ACLU is not merely an organization that protects civil rights, it is “friendly” toward and on equal footing with “scumbags?”

This is not to defend or support the ACLU, nor is it to condemn them; they do what they do and sometimes miss the mark and irritate us. We can’t control what anyone thinks, says, or does. We CAN control our thoughts, words, and actions and, by doing so, represent ourselves and our profession with honor… and without stoking the fires of our detractors.

Ours is a profession under the microscope, and not everyone with their eye on us are fans. Many look for any ammunition against us – to twist our smallest words and actions into proof of their worst perception of what we are. We owe it to the profession, and all who practice it, to choose the words we use in front of a watchful public with extreme care.

Althea Olson, LCSW has been in private practice in the Chicago suburbs since 1996. She has a Master of Social Work degree from Aurora University providing individual, couple, & group therapy to adolescents, adults, and geriatrics. Althea is also trained in Critical Incident Stress Management & is a certified divorce mediator.

Mike Wasilewski, MSW has been with a large suburban Chicago department since 1996. He holds a Master of Social Work degree from Aurora University and has served on his department’s Crisis Intervention & Domestic Violence teams. Mike is an adjunct instructor at Northwestern College.

Mike & Althea have been married since 1994 and have been featured columnists for Officer.Com since 2007. Their articles are extremely popular and they now provide the same training and information in person throughout the United States. This dynamic team was recently featured at the at the 2010 & 2011 ILEETA Conference & Exposition.

Out of their success has come the formation of More Than A Cop where the focus is providing consultation and trainings on Survival Skills Beyond The Street.